Science Avengers … ASSEMBLE!
Next up on the docket is Beastie Boys v. GoldieBlox, Inc. in the 4th Circuit Court for “Ridiculous Applications of Copyright Law”
You know that amazing ad for GoldieBlox engineering toys? The one that features three young girls busting up our pretty pink princess toy culture using one of the greatest Rube Goldberg setups ever devised? The one that has a chance to be played during the Super Bowl, so that people everywhere can see the value of promoting STEM education in young girls’ lives?
Well, the Beastie Boys don’t like it. GoldieBlox produced a parody version of the Beastie Boys’ hit song “Girls” for that ad, and the Boys of Beasthood are going after them for copyright infringement.
GoldieBlox is claiming “fair use” in a counter-filed court claim (or whatever it’s called, I’m a scientist, not a lawyer), which I actually think GBlx have a pretty good case for, but I’m not going to bore you with legal mumbo-jumbo. This is made especially ironic by the fact that the original Beastie Boys song has, shall we say, a decidedly less than flattering view of women.
Inside the GoldieBlox court filing, I found this sick burn directed at the Beastie Boys’ original lyrics compared to the inspiring GoldieBlox version:
In the lyrics of the Beastie Boys’ original song, girls are limited (at best) to household chores, and are presented as useful only to the extent they fulfill the wishes of the male singers. The girls are objects. The GoldieBlox Girls Parody Video takes direct aim at the song both visually and with a revised set of lyrics celebrating the many capabilities of girls. Set to the tune of Girls by the Beastie Boys but with a new recording of the music and new lyrics, girls are heard singing an anthem celebrating their broad set of capabilities—exactly the opposite of the message of the original. GoldieBlox Girls are the subjects; they are the actors taking charge of their environment.
It gets better! Look at this chart comparing the lyrics of the original to the lyrics of the parody cover, it’s too good:
The Beastie Boys and Def Jam records just need to do the right thing here and let it goooooooooo (preferably slow and low). That’s where you come in!
- Tell them what you think on social media. Twitter: @DefJamRecords @beastieboys @ADROCK @UMG Facebook: Beastie Boys, Def Jam Records
- It wouldn’t hurt to tell GoldieBlox that you’ve got their back, too: @goldieblox
- Keep voting so the GlodieBlox ad can be played during the Super Bowl
- Universal Music Group/Island Def Jam’s VP of media relations is named Lauren Schneider, and she has an email address: email@example.com
I love the Beastie Boys, and they have done a lot of good for the world since their rambunctiously youthful days. Do the right thing. Fight for young girls’ right to party … with toys that empower STEM education.
Signal boost the hell out of this until this meets its rightful end!
*Cracks knuckles* Time to get legal! (My favorite time. Seriously, I love copyright and have a lot of feelings about copyright.)
I took a quick look at the “counter-filed court claim” and found something really interesting: the Beastie Boys have threatened to file suit on this, but they haven’t yet. GoldieBlox, believing wholeheartedly in their fair use claim, filed first, in what’s called a declaratory judgment. Basically, they’re asking the court to say, “Yes, you’re right, this use is protected.”
Basically, they’re forcing the Beastie Boys to go on the defensive about this, instead of just sitting back and threatening to do something about it, while expecting that the itty bitty girly toy company will disappear into the sunset, tail between their legs. Filing for a declaratory judgment is a sign that you’re pretty sure you’re going to win, which brings me to the next part:
The Legal Stuff:
GoldieBlox is absolutely right, this is fair use. Parody is very clearly protected by fair use laws, as decided in Campbell vs. Acuff Rose. In that case, the parody was of Roy Orbison’s “Pretty Woman”, and the parody of it made by 2 Live Crew. The court found that even though they’d copied substantial amounts of the “heart” aka melody and some lyrics of the work, there is a finding of fair use. Particularly since parodies are not intended to, and do not replace the original work in the marketplace.
Here, you have a fairly awful sexist song that’s been parodied by an awesome toy company and turned into something delightful. They took the melody from the original, but made their own lyrics and totally flipped the meaning of the song.
That’s a textbook case of fair use.
November 23, 2013
Back in the 90s, the Supreme Court issued a ruling in a case where 2 Live Crew basically rewrote the lyrics to Pretty Woman, and the song’s publishers sued for copyright infringement. The Court said this:
…the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright…
It’s something new.
Transformative works are not treated the same as a derivative work because they add something new to the original, which promotes “the progress of science and the useful arts.” The result of the transformative process is something new. Looking back to Campbell v. Acuff-Rose Music, Inc, “The central purpose of this investigation is to see…whether the new work merely [supersedes] the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message; it asks, in other words, whether and to what extent the new work is transformative.”
Because of this ruling, the copyright owner does not control transformative works inspired by the copyright owner’s work, and cannot bar them, or sue to stop the sharing of them; the doctrine that protects transformative works is called “fair use”.
To quote the OTW: fair use favors uses that (1) are noncommercial and not sold for a profit; (2) are transformative, adding new meaning and messages to the original; (3) are limited, not copying the entirety of the original; and (4) do not substitute for the original work. None of these factors is absolutely necessary for fair use, but they all help.
And even if you are making a commercial use out of it, if your fanart is of a real person and not a character, or of a character who isn’t protected by copyright (ie minor characters in books, shows, films, etc.), or if the work is a parody, that’s also not an impermissible copyright infringement.
November 17, 2013
Several years ago, Google came up with an idea to scan in a whole bunch of books and make them searchable, for free, for the public. They did this without a licenses from the copyright owners of the books, but contended that their use was not infringement.
Naturally, it went to court.
And today we have an answer from the Second Circuit: Google Books is Fair Use because the books are, themselves, transformative works.
While the case itself doesn’t mention fanworks, most law in the US is made by comparing situations and “arguing by analogy”, so the Google Books ruling has huge implications for fandom and the fan community. The bulk of the court’s analysis is focused on the first part of the Fair Use test: the “Purpose and character of the use”, aka whether or not a work is “transformative.” Although the “transformative” nature of a work is only one factor in the fair use test, it is often considered to be the most important part of the test, and the ruling in this case is no exception.
In this case, the court found that Google’s use of the text was transformative, both in the sense that it digitized the text, but also that it indexed and made the text searchable, comparing the function of google books, which isn’t to provide whole copies of books to consumers for free, but to provide ways for consumers to search for information in more than just web postings, similar to the function of thumbnail searching for images. (A practice which has already been held to be fair use, Perfect 10, Inc. v. Amazon.com, Inc, 2007.)
Finding transformative use where there has not been significant altering of the original work itself, but rather a transformation in how the original work is used, is extremely significant for fandom.
Though there haven’t been any direct rulings on the legality of freely shared fanfiction, there is a lot of misinformation and scare tactics that make the rounds periodically, claiming that we’re all just a C&D letter from being wiped off the face of the internet. In this case, the court found that,
‘Google Books does not supersede or supplant books because it is not a tool to be used to read books. Instead, it ‘adds value to the original’ and allows for ‘the creation of new information, new aesthetics, new insights and understandings.’ Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. at 1111. Hence, the use is transformative.
That’s what fanfiction does - its authors create new aesthetics, new insights and new understandings, in narrative form. The parallels are inescapable.
Expanding the definition of “transformative” to allow for uses of the original text that not only allow for new interpretation but allow for new uses that take from the source material and may or may not significantly change that source is huge for fanfiction, both as a matter of law and as a matter of public perception. Many people who are still arguing that fanfiction is illegal are claiming that it isn’t transformative enough. Fanfic is never going to supplant the original work; instead, fic writers are adding value to the original source by exploring characters and universes in more depth than the original is able to. Any ruling that expands the definition of what is considered a “transformative” work helps us.
The case will likely be appealed, but for now read the full ruling here.
November 14, 2013
The OTW’s Legal Advocacy project has stood up for fans’ rights to create and share, helping individual fans with legal questions and making fans’ collective voices heard in court cases.
Recently, our Legal Committee asked for fans to help by providing either media stories or personal stories of takedown requests and actions that have made fans hesitant to create or share fanworks.
Your help is needed again! The U.S. National Telecommunications and Information Administration (NTIA) and the U.S. Patent and Trademark Office (PTO) are seeking public comments on copyright policy issues, including the legal framework for the creation of remixes. The window for these submissions is short — they must be in by October 14, so we need to act now.
The Legal Committee is thus looking for stories of how fandom has helped fans in day-to-day life. We need you to share your individual stories with concrete examples. For example, perhaps being in fandom has helped you to learn a language, helped you in school, or helped you improve skills that you use elsewhere — skills such as writing, video editing, coding websites, audio editing, or anything else. We don’t need personal information from you, but the more specific the story, the better.
Our attorneys will use your stories to explain to these agencies, which are likely to propose new legislation about copyright, why any change in copyright law should favor freedom to make transformative works. We succeeded before with the DMCA remix exemptions, but only because we were able to share specific stories from vidders. Now we need stories of all kinds.
We also need them soon! Please provide us with your stories by October 10, as our team needs time to work with them before the submission deadline of the 14th.
To submit your story, please use the Legal Committee’s contact form.
And if the OTW’s legal advocacy work is important to you, please consider making a donation to support our ongoing efforts. Thank you!
The government may be shut down, but the PTO is open and seeking comments on copyright policy issues! Tell your fandom story (this week, please!) and help the OTW show how transformative works are creative, magical and protectable as fair use.
October 3, 2013
I find really interesting this tumblr, but im curious with one thing... when you post about copyright, you dont make a difference with the USA and International ones, i dont know, i need to know when can i focus about a law that may be used in my country (international) and not only USA
August 26, 2013